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PETITIONER: GHULAM DIN BUCH ETC.ETC.

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT:       03/04/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAY, G.N. (J)

CITATION:  1996 AIR 1568            JT 1996 (4)   515  1996 SCALE  (3)271

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA. J.      The 1975  accord with  Sheikh Abdullah  saw  a  dynamic person from  Ladakh coming  to  the  fore.  He  was  made  a Minister. He  wanted to  do many things for Ladakhis. One of the projects  which the  Minister (Shri Sonam Narboo) wanted to get  fructified was electrification of tehsils of Leh and Kargil. The  fund for  the same  was to  be provided  by the Central Government  under Rural  Electrification Scheme.  To see that  the scheme was implemented within time, a separate Electric Construction  Division was created at Leh. This was in February 1977. An Executive Engineer was put in charge of the Division  and he  was one N.A. Salaria, who was selected because of  his dashing character which had come to light by his getting  established a  generating station at Choglamsar within record  time. The electrification scheme was taken up after Shri Narboo, who was Minister for Works, Power,Tourism and Ladakh  Affairs, had  toured the  area from  5.6.1976 to 13.7.1976. The  idea was to electrify areas around Leh first for which  it was  felt that  3100  bamboo  poles  would  be required. It  was also noted that from September onwards the fruit session starts and all available transport is diverted to carry  fruits to  the plane and no transport is available for Ladakh.  This apart,  food grains  are  required  to  be stored in Kashmir valley and Ladakh to cater to the needs of the people  during winter  season. This  being high priority ares, the concern of the Government is to see that this work does not suffer for want of  transport vehicles. 2.   It is  in the  aforesaid situation  and  scenario  that Salaria took  up work  in right  earnest from  first week of September  1977,   after  the   Chief   Engineer,   Electric Maintenance and  RE, Kashmir had toured the two tehsils from 17th to 23rd August, 1977. The work was to arrange transport vehicles to  carry required  number of  poles to  Leh before November,  after   which  Ladakh  region  becomes  virtually

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inaccessible. The allegation is that the situation permitted persons in  the Power  Department to  take advantage  of the same and  a conspiracy  was  hatched  to  give  contract  of transportation to  such persons who showed their willingness to share  the booty  with the  officers.  According  to  the prosecution, these persons included even the highest officer of  the   Power  Department,   namely,   Power   Development Commissioner and  it went down to the Sectional Officer. The conspiracy came  to the notice of none else than Shri Narboo as some  complaints were  received by  him in November, 1977 regarding giving  of contract  of transportation  to private firms on  per kilometer  per pole  basis and the poles being also of  sub-standard quality.  He wanted wanted information about the  same by  writing  a  D.O.  letter  to  the  Power Development  Commissioner   on  18.11.1977   followed  by  a reminder on  5.12.1977. After receipt of reply, the Minister asked for  a report  from the  Chief Engineer. On receipt of the same,  he felt  the matter  required  deeper  probe  and appointed Qazi  Mohd. Afzal  as Enquiry Officer in December, 1977. His report was submitted on 3.4.1978 which highlighted some serious  irregularities. After  considering the report, the Government entrusted the matter for further probe to the Anti-Corruption Organization  set  up  under  the  (Jammu  & Kashmir) Prevention  of Corruption  Act, 2006,  (hereinafter the Act). A case was accordingly registered on 26.4.1978 and a Senior  Superintendent of  Police, one  Shri S.S. Ali, was entrusted with  the investigation,  who after  completion of the same  and after  obtaining sanction from the Government, submitted charge-sheet on 10.8.1978 against 42 accused. 3.   It the trial which commenced, after discharge of one (a labourer), 65 witnesses were examined by the prosecution and 2 by  the defence.  Great  number  of  documents  were  also exhibited. The  trial court  by its very exhaustive judgment dated 29.9.1981,  which runs  into 420  pages, acquitted  11 persons  including   Power  Development  Commissioner,  Shri Ahangar and  Chief Engineer,  Shri Naqash;  and convicted 30 under various sections of law including section 120-B Ranbir Penal Code and section 5(2) of the Act. 4.   On appeal  being preferred,  the High  Court of Jammu & Kashmir acquitted  19 more including Superintending Engineer Shri Kaul and sustained conviction of 11 persons who are the appellants in  the 10  appeals  at  hand.  Of  them,  7  are officials and  4 are  contractors. The  officials are  : (1) Executive Engineer,  N.A. Salaria;  (2) Assistant  Engineer, G.D. Buch;  (3-4) two  employees  of  the  Chief  Engineer’s office -  T.K. Kantroo and V.K. Razdan; (5-7) three officers who had  passed the poles-they being H.L. Dhar, Farooq Ahmed Zadoo and  Mohd.  Siddiq.  The  four  contractors  are;  (1) Hafeezullah; (2)  Farooq Ahmed  Qurashi;  (3)  Abdul  Rashid Khan; and (4) Peer Gulam Nabi. 5.   The appeals  being by  the convicted  persons and there being no appeal against acquittals either by the trial court or the  High Court,  it is  apparent that  we  have  to  see whether the  persons ultimately  convicted by the High Court had been rightly found guilty of the charges, inter alia, of conspiracy. We  have mentioned  about  this  aspect  at  the threshold because  the principal  charge being of conspiracy and  that   too  involving  highest  officer  of  the  Power Department, and  he having  been acquitted even by the trial court along  with the  Chief Engineer, followed by acquittal of Superintending  Engineer by the High Court, we shall have to see  whether the  links which have been left in the chain of conspiracy  do leave  a  thread  to  piece  together  the actions of  the convicted  appellants so  as to  establish a conspiracy by them.

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6.   Many  of   the  learned   counsel  appearing   for  the appellants made  a grievance  that  the  State  has  allowed higher ups  to remain  unavailable to  this  Court  and  has thought  it  fit  to  press  the  case  against  small  fry. According to them if there was a conspiracy at all, the same could not  have been worked out without the connivance of at least the  Chief Engineer  and Superintending Engineer. Shri Handoo,  appearing   for   the   State,   felt   some   what uncomfortable at the non-filing of the appeals by the State, first in  the High  Court and then in this Court against the acquittals of  higher-ups. But  then, no  appeal having been filed, the  ultimate submission  was that  the core  of  the conspiracy had not been adversely affected by the acquittals and the  evil design  resulting in  causing wrongful loss to the  State   Exchequer  by  causing  wrongful  gain  to  the contractors and  themselves has  to be punished. Differently put, the  submission was  that the  inner circle  of the two concentric circles has not been damaged because of the outer circle  getting   wiped  out.   According  to  Shri  Handoo, therefore, the  acquittals of  the higher-ups  cannot per se see the acquittals of the appellants. 7.   To  appreciate   the  aforesaid   submission,  we  have basically to note the key role assigned to appellant Salaria who, according  to the  prosecution, was  duly supported  by appellant Buch.  These two according to Shri Handoo were the main actors  in the  drama,  which  was  enacted  about  two decades back  in an  area which had not seen a conspiracy of the  type  at  hand  causing  loss  of  lacs  to  the  State Exchequer, which  had drawn  attention  even  of  the  State Cabinet. 8.   Loss of  lacs (the  total loss  to the  State Exchequer having been  estimated at Rs.1,62,117.89) was undoubtedly of great concern  two decades earlier and we can appreciate the great consternation  this  case  had  caused  in  the  State requiring  appointment   of  a   senior  Sessions  Judge  to constitute the  Special Court under the Act to try the case. The heroic  effort made by the prosecution to bring home the guilt also  speaks for itself. The lapse of time, therefore, cannot be  allowed to  come to the aid up the appellants, as has been one of the submissions on behalf of the appellants, based on  the fact  of long  suffering already undergone. We would,  therefore,   examine   the   materials   on   record objectively  without   being  influenced   by  the  hardship undergone, which  could be  taken note  of,  if  need  would arise, while  dealing with  the question of sentence. May it be stated  that we  would undertake  this exercise as we are satisfied about  the core of conspiracy, referred to by Shri Handoo as  inner circle  of the  conspiracy, having remained unaffected despite  aforesaid acquittals,  as  would  appear from what is being state later. 9.   The first  and foremost  question which  neeeds  to  be looked into is whether the acts attributed to the appellants were at all meant to cause wrongful loss to the State by the alleged conspiracy. Almost all the learned counsel appearing for the  appellants were  at pains  to convince  us that the arrangement which  was made  with the  contractors to  carry poles was  not at  all aimed  to cause  any wrongful gain to them inasmuch  as payment  on the basis of per kilometer per pole was  not a  new device  adopted in  1977 for  the first time, but  that had  been in vogue at least since 1971. This apart, the  rates which  were agreed  upon  was  also  quite reasonable. The  same was  30 or  35 paise per k.m. per pole depending upon  the size, which is in the close neighborhood of what  had been paid even in 1976 for carving poles to Leh itself by  the arrangement  finalised by Shri Bassu, who was

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the immediate  predecessor of Salaria. Shri Handoo seriously contested this  claim and urged that per k.m. basis had been adopted for  the first  time in  1977 for  long haulage;  in earlier years this was being accepted for carrying materials to short  distances. As  to the reasonableness of rates, the State’s case is that the amount agreed to be paid was almost three times of what was being paid earlier. 10.  We  would,   therefore,  first  examine  the  aforesaid crucial question.  We would  then see  whether the giving of contract at the lowest tendered rate made any difference.      Reasonableness of the contractual rates. 11.  There is  no dispute  before us that the Road Transport Corporation (RTC)  functioning  in  the  State  of  Jammu  & Kashmir, which  owns a  fleet of vehicles, used to charge on the basis  of per  truck, and not per k.m. This rate was Rs. 1400/- in  the relevant year. The private transport carriers also used to charge the same amount per truck. But then, the number of  poles to  be carried  by these  trucks to a place like Leh  used to  be around  25. This  made  a  difference, according to  the learned counsel for the appellants, as the number of poles carried by the trucks which had been engaged by the  contractors at  hand used to be even 70. Shri Handoo contended that though the number of poles carried were more, the same  did not really matter inasmuch as total cft (cubic feet) transported  was not  in any  significant manner  more than carried  by the  trucks of  RTC  or  private  transport owners because  each of those trucks used to carry about 280 cft, whereas  from Statement  No.2 filed  by Shri  Thakur it would appear that the cft carried in the present case ranged between 200  to 300,  though in  some cases it went upto 400 also. As  to the  contention that  the rates of carriage per pole came  to 30.49 paise insofar as the transportation done by Shri  Bassu is  concerned, Shri  Handoo’s submission  was that this  calculation as  put on  record on  behalf of  the appellants is wrong. As per his contention the per pole rate then was  9.36 paise  as mentioned in the Charge-Sheet filed in the case, a copy of which is from pages 1 to 86 of Volume I of  the Paper Book prepared by the appellants. This figure has been mentioned at page 72 of this Volume. 12.  As to  the  calculation  furnished  on  behalf  of  the appellants -  the same  being that the rate was Rs.30.49 per pole if what was paid for the carriage to Leh in 1976 during the incumbency  of Shri  Dassu -  we would observe that that calculation has been arrived at by showing, inter alia, that the charge  of loading and unloading per pole at Rs.52. When Shri Thakur  was questioned on this, the learned counsel had referred us  to the  evidence of  the Investigating  Officer (I.O.) finding  place at page 230A of Volume IV. A reference to that  statement showed  that the unloading charge came to Rs.18 per  pole and  the loading charge to Rs.7.80. Thus the total came  to about  Rs.26 from stocking site to the truck. The learned  counsel contended  that this  figure had  to be doubled because  the same  amount used  to be  incurred  for bringing poles  at the  stocking site  from the  forest. The I.O. had not said anything about this on his own, nor was he asked any  such question  in cross-examination.  However, to convince us  that the  figure of  Rs.26 is  required  to  be doubled, in  the  written  submissions  filed  on  21st/27th March, the  learned counsel  appearing  for  the  appellants quoted the following evidence of PW 24 Bassu:-      "Expenses for loading and unloading      as well as the manual carriage from      loading site  and  unloading  site.      For manual carriage of the poles we      have to  pay extra. By referring to

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    the  manual   charges  I  mean  the      lifting   of    poles   by   manual      labourers from  Depo  site  to  the      truck and  also their removal after      unloading to the stock site.      Q/ When  you took  these poles  for      installation  from  Choglamsar  you      again had  to  incur  expenses  for      manual   carriage,    loading   and      unloading of poles? A/ Yes." 12-A.      From  the above  quoted evidence  of PW 24, it is not known  how much  had been  paid during his incumbency as total loading  and unloading  charges. It is not known which instances the  I.O. had  in mind  when he  had stated  about loading and unloading charges. It deserves to be pointed out that the  poles which had been carried in 1977 had basically been supplied  by Mustaq & Company and it was the obligation of this fir, as per Shri Handoo, to bring the poles from the forest to  the stocking/dumping site. What is more important is that  the decision  which was  taken in the joint meeting held on  11.5.77 was  that the  poles would  be carried from Kangan and Sonmarg vide page 22 of Vol.III. Mention has been made about  this in  para 69 of the charge-sheet also, which is at  pages 1-86  of Volume  I. But  for some  inexplicable reason, the stocking/dumping site was changed and poles were carried from  Waltab which  resulted in additional burden on the State  exchequer. Shri  Handoo made  a serious grievance about this change of site. 13.  For  the  aforesaid  reasons,  we  do  not  accept  the contention of  the appellants  that  loading  and  unloading charges when  poles were  carried during  the incumbency  of Shri Bassu came to Rs.52. Therefore, we would not agree that the rate  of carriage  per pole in 1976 was Rs.30.49. So, we accept the  prosecution case that the rates agreed to in the present case  were not reasonable. This is almost writ large on the  face as  the carrying  charge per  pole came  to Rs. 144.60. This  has come out clearly in the Office Note, which starts at  page 12  of Volume  IX.  (This  figure  has  been mentioned at page 13). In this context, it would be apposite to refer to what has been stated in the impugned judgment of the High  Court at  page 158  of the  volume containing this judgment. It  has been  mentioned therein  that the  payment made to  the contractors  showed that  the  same  per  truck worked out  to Rs.10,561.66,  whereas the  rates of  the RTC would have  been Rs.1993.57.  The same  would have been even less (Rs.1839.57)  if trucks  of private  carrier would have been engaged. 14.  Being satisfied  that the  rates  agreed  to  with  the contractors were  not reasonable, let it be seen whether the higher payment was motivated or was agreed upon to take care of the  exigency of  the situation.  Shri Thakur  strenoully urged  that  implementation  of  the  rural  electrification scheme within  the time  spelt out  by the  Minister was the need of the hour, for which purpose a dashing character like that of  Salaria was  brought to  the scene.  The  concerned persons were  duty bound  to do all that could reasonably be done to carry poles to Leh before the onset of winter season which cuts off Ladakh from the Valley for a long period. The fruit growing season being round the corner and the need for storing food  for the  winter being the prime concern of the Government, the  concerned officers  had  to  implement  the scheme before the onset of winter and had no alternative but to engage  trucks made  available by  the contractors as the RTC had expressed difficulty in making the trucks available. To satisfy  us that  there was  no evil design in giving the

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contract of  carriage to  non-transport firms,  it was  also urged that  the rates  had been fixed after tenders had been invited and the lowest tender was accepted. 15.  Shri Handoo  would not  like us to accept the aforesaid statements  because,  according  to  him,  large  number  of Government trucks  could be  used for  the purpose if proper approach would  have  been  made.  In  this  connection,  he referred us  to the  communication from  the office  of  the Transport Commissioner  to the  Investigating Officer (I.O.) dated 24.5.78,  which is at pages 269 to 270A of Volume VII. It has been mentioned therein that the State had about 4,000 trucks operating  on J&K  roads only  and about  400 to  800 trucks used  to  lie  idle  everyday.  This  letter  further informed the I.O. that no officer of the Electric Department had approached the officer of the Transport Commissioner for arranging trucks  for the  carriage of  poles.  The  further statement was  that the  Minister for  Ladakh had personally contacted the writer on 5th November, 1977 stating about the urgent need  of transporting  four lac  liters of High Speed Diesel to Leh and despite shortage of time they were able to complete the  massive operation  within three weeks. We have also been  referred by Shri Handoo to the evidence of PW 29, Shri SD  Shangllo, Executive  Engineer, Mechanical Division, Srinagar, which  is at  page 48-49  of Volume  IV that their Department was  having 39  trucks in  its fleet and they had received no requisition from REC Leh for carriage of poles. 16.  The aforesaid  does show   that  no efforts  had really been made  by the  concerned officers  to get the Government vehicles. Shri  Thakur and  Shri Jain,  however, urged  that before floating of tender, RTC officials had been personally contacted by  Salaria and  on being stated that trucks could not be made available "at the present time", the exigency of situation left  no alternative  but to  invite tenders. This information to  Salaria was in the document which is at page 256 of  Volume VII.  The catch,  however, is  that when  the signatory of  this letter,  Sardar Jai  Singh, appeared  the witness box  as PW2  he deposed that on his being approached by Salaria  on 15th  September, 1977 what he had really told was that  there was no objection to supply of trucks but due to earlier  commitments with  other departments trucks could not be  supplied for  "2 to 3 days". Salaria however did not come subsequently  asking for  trucks and  so no  trucks got supplied by  the RTC. Shri Thakur contended that this  gloss put by  Jai Singh does not merit acceptance, as, if that was what was  really told to Salaria, the same should have found place in  the aforesaid  communication. In  this context  we were taken through the various questions which were asked to Jai Singh  on this aspect and which find place from pages 50 to 55  of Volume  III. If  the evidence  of Jai  Singh alone would have  been on  record, we could have perhaps agreed to what was submitted by the learned counsel for the appellants in this regard; but having noted what had been stated by the Transport Commissioner  in the  afore-noted letter  and what had been  the evidence of the Executive Engineer, Mechanical Division, we  are of  the view  that Notice  Inviting Tender (NIT) came  to be issued as pre-arranged, to which aspect of the matter we shall advert now.      Issuance of NIT and subsequent happenings. 17.  Under  normal   circumstances,  giving   of   contract, following issuance  of tender notice, to the lowest tenderer cannot be  regarded as objectionable in any way. In the case at hand,  however, issuance  of NIT  was as per pre-arranged plan, as already mentioned. We have said so because the same came to  be issued, not in the wake of denial, even if there was  any,  by  the  RTC  official  to  make  their  vehicles

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available. That  tenders would  be invited  had been  stated even  by  8.9.77  by  Much  to  appellants  Hafeezullah  and Qurashi. The  letter of  Much of  8th September addressed to Salaria, which  is at pages 50 and 51 of Volume X, mentioned that the  former had  negotiated with  M/s. Arfa  Electrical Company (which  is the  name of  the  concern  of  appellant Hafizullah) and  M/s  Farooq  Ahmed  Qurashi  and  they  had accepted to  carry poles  from Srinagar Valley to Kargil and Leh on  the condition  that the  rates of  carriage  charges could be  those which  would be  found lowest after floating tender. Much further stated in the letter that the firms had been advised to start  the carriage of poles: of course, the charges to be paid would be known after receipt of tender to be floated  in this  regard. There  is thus nothing to doubt that a  decision had  been taken with the consent of Salaria to float tenders even by 8th September. The contact with the RTC official  at Srinagar  was on  15th and the obtaining of the aforesaid  letter from Jai Singh may, therefore, just be a ruse  for issuance  of the  NIT. What  has made the matter worse for the appellants is that a copy of NIT was sent even to M/s  Khan  Electric  and  General  Stores,  the  firm  of appellants Abdul  Rashid Khan  and Peer  Gulam  Nabi,  whose tender was  ultimately accepted, which, apparently was not a firm engaged in the business of transport. 18.  Shri  Handoo,  therefore,  rightly  submitted  that  an understanding   had    been   arrived   at   between   these firms/persons and the tender exercise was a camouflage. This conclusion gets  fortified when  it  is  noted  that  though according to  the officials,  tenders had been received from some transport  carriers, to  wit, Sopore Transport Workers’ Union, in  fact it  was not so. This has transpired from the evidence of  PWs  21  and  22,  who  were  the  Manager  and President respectively  of  the  Sopore  Transport  Workers’ Union. Both  of them  stated  that  their  Society  had  not submitted any tender and the one which was said to have been filed in its name had really not emanated from their office. Even the  seal put  in the  tender was  not theirs  and  the tender had  not been  signed by  any authorised person. Shri Thakur urged  that the  tender might have been signed by the Accountant, who  was in  employment at  Srinagar Branch,  as admitted by  PW 22  had stated  that the  Accountant was not authorised to  submit quotations.  We are  inclined to think that similar  must have  been the  position qua  some  other transporters who  had purportedly  submitted  tenders.  Shri Handoo further  contended that  the NIT  had been  issued to selected persons  as would appear from the evidence of PW 19 (at page  220 of  Volume II) to the effect that his firm had not received  any tender  notice. The  firm of this witness, named Diamond  Motors, was a leading transporter of Srinagar as about 100 trucks were attached to his firm. 19.  At this  stage we may indicate that the firms styled as Arfa Electrical  Company and  Khan  Electrical  and  General Stores are  closely knit,  as would appear from the evidence of DW  1 Farooq  Uddin, who stated about his being a partner in  the   firm  of   Arfa  Electrical   Company,   alongwith Hafeezullah. Though  he stated  in the  examination-in-chief that his  firm had  nothing to  do with  the  firm  of  Khan Electric and  General   Stores, from  the statements made by him in  cross-examination it  appeared that  Arfa Electrical Company was  not  running  a  shop  and  that  firm  had  no headquarter. He  further stated that Hafeezullah used to run his father’s shop named Khan Electric and General Stores and correspondence for  Arfa Electrical used to be from the shop of Khan  Electric. He  further admitted that Afra Electrical had no  registration with the Sales Tax Department. Even the

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bill-head of  Khan Electric  and General  Stores was used by Arfa Electrical  after erasing  the name  of the  former and overwriting name of the latter. These statements do show the inter relationship  and closeness of Arfa Electrical Company and Khan Electric and General Stores. 20   The above  is not  all inasmuch as there is material on record to  show that Qurashi is related to Hafeezullah being a son  of his father’s brother-in-law. This would definitely indicate  that   Qurashi  too  had  acted  in  concert  with Hafeezullah. 21.  The aforesaid facts leave no doubt in our mind that the exercise of issuing the NIT and accepting the tender of Khan Electric and General Stores were parts of pre-arranged plan. We have  reasons to believe that the lowest amounts tendered were also those about which there had been a meeting of mind between the tenderer and appellants Salaria and Buch, if not others. We  are inclined  to think  so  because  it  is  not believable  that   without  such   an  understanding,   Arfa Electrical and the firm of Qurashi would have undertaken the work of  transport even before the NIT was issued. They must have done  so, on being told what the lowest rates would be, at least, could be. There is much merit in the submission of Shri Handoo  that the  non-transporters were  brought in the picture even  when firms of transporters were known to exist and there  was no  dearth of  trucks proved by the fact that the three  contractors could  arrange 132  trucks  within  a short span  of 8.9.77 to 7.11.77, only because of some prior understanding with  them to share the extra profits with the officials. And  this extra  profit was  ensured by  allowing carriage per  pole per  k.m. basis,  though the  contractors themselves engaged trucks on lumpsum basis. (This figure was given as Rs.8000/- by DW 1). So, everything pieces well; all acted concertedly  to allow wrongful gain to the contractors on the  understanding that  the booty would be appropriately shared. 22.  Having come to the aforesaid conclusion which does make out a  case of  conspiracy to  cause wrongful  loss  to  the State, let it be seen whether the appellants herein were the conspirators; and,  if so,  whether the charges against them have been brought home in accordance with law. We propose to examine this qua each of the appellants separately. We would first take  up the  case of  the two persons, who had played the key role in the conspiracy according to the prosecution. They  are   appellants  N.A.  Salaria,  the  then  Executive Engineer; and G.D. Buch, the then Assistant Engineer.            Appellants N.A. Salaria and G.D.Buch            (Criminal Appeal Nos.521 and 530/1981) 23.  There is  no doubt,  in view  of what  has been  stated above, that  they played key role in giving of the contracts and formed  the inner  circle of  the conspiracy.  There can also be  no doubt in view of what has already been held that their actions  were actuated by ill motive, and the same was not inspired  to get  the poles  at  Leh  to  see  that  the electrification scheme  gets shape  before winter  sets  in. Apart from what has already been mentioned about the tainted steps taken  by them,  Shri Handoo has brought to our notice another facet  of the  case, which  was to  get  transported about 10,000  number of  poles as  against the need of about 4,700. The  NIT itself  had specified  this number  as about 6,000. 24.  Shri Thakur,  learned senior  counsel who  appeared for Buch, contended  that the total requirement for 1976-77 came to about  12,400; and  as during  Bassu’s period  only about 2,000 poles could be carried, no motive could be ascribed if 10,000 poles were transported during the period in question.

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25.  We would  have accepted  the submission of Shri Thakur, but having  found that  the rate  at which  the  poles  were agreed to  be carried  were unreasonable,  we read motive in allowing carriage  of poles beyond what was strictly needed. The greater the number of poles carried, the higher would be amount which would become payable to the contractors because of the  rate being  per pole;  and  the  high  profit  would benefit the appellants also. 26.  Nothing further  remains to  be said  to  come  to  the conclusion that  these appellants  were rightly found quilty of the  charges, which  qua them were commission of offences under section  5(2) of the Act and 120-B/ 109/116/119 Ranbir Penal Code.  At  this  stage  we  say  something  about  the submission made by Shri Jethmalani, who had appeared for two of  the  contractors  namely  Hafizullah  and  Farooq  Ahmed Qurashi, that the charge having only mentioned about section 5(2) was not quite explicit inasmuch as it did not spell out which particular  misconduct specified in sub-section (1) of section 5  was being attributed. The learned counsel further submitted that  of all  the four  types of misconducts taken care of  by sub-section  (1) in  its four clauses, it is the one mentioned  in clause (do which could apply, which speaks of abuse  of the position by a public servant by "corrupt or illegal means". The contention as to this clause was that no corrupt or  illegal means  had been  adopted by  the  public servants because  the  contract  had  been  given  following invitation to submit tenders which is a known and legal mode of giving  contracts; it  was in  also not  a corrupt means. There is  no force  in this  contention, as  the undertaking given to  the aforesaid  two contractors  that they would be allowed to carry poles at the lowest tendered rates followed by how  the NIT  was issued  and what  happened  thereafter, there can be no dispute that the public servants in question did abuse  their position.  It so  deserves to be noted that clause (d)  does not  speak only  about "corrupt  or illegal means" but  also takes  within its  fold obtaining by public servant for  himself or  for any  other person any pecuniary advantage "otherwise"  as well.  We, therefore,  do not find any infirmity in the charges as framed. 27.  So, we  uphold the  conviction as awarded against these appellants. Coming  to the  question of  sentence,  we  have noted that  section 5(2)  of the  Act has  stated  that  the punishment shall  not be  less than  one vear’s imprisonment but may  extend to  seven  years.  The  trial  court,  being satisfied about the need of deterrent punishment had awarded imprisonment for  four years  and a fine of Rs.25,000/-. The High Court  has, however,  reduced the sentence to two years and fine  too has  been reduced  to Rs.15,000/-,  despite of having noted  that evil  of corruption  had of  late assumed menacing proportion  and was  the deadliest  enemy of a free civilised society. 28.  According to  us, it  would be  too harsh to award even the minimum  punishment at  this length  of time  keeping in view the hardship already undergone and the amount which the State had ultimately to lose because of the conspiracy - the same being  a sum  of Rs.1,62,117.89.  As about  two decades have passed  since the  commission of  the  offence  and  as during  the   interregnum  the  appellants  had  undoubtedly suffered in body and mind, according to us, it is a fit case where the proviso to sub-section (2) of section 5 of the Act should be  invoked which  states that  for  special  reasons recorded in  writing, the  court may refrain from imposing a sentence  of   imprisonment  or   impose   a   sentence   of imprisonment of  less than  one  year.  Though  the  proviso permits not  to impose a sentence of imprisonment at all and

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confine the  sentence to  fine only,  we  do  not  think  if present is  a case where the punishment to be awarded should be only  fine, as  any softness in this regard could produce an undesirable  result, namely, encouragement to adoption of corruption means  by public  servants which has indeed to be checked, and not allow to be encouraged. Keeping in view all the attending  circumstances, we  are of  the  view  that  a sentence of  RI for  two months  would be adequate sentence, apart from  the fine  of Rs.15,000/-.  On failure to pay the fine, each  of the  appellants would suffer imprisonment for two months. 29.  Crl. Appeal  Nos. 521  and 530 of 1981 therefore, stand dismissed,  subject   to  the   aforesaid  modification   in sentence.                  Appellants T.K. Kantroo and V.K. Razdan                  (Criminal Appeal Nos.523 and 526/1981) 30.  These appellants  were working  at the relevant time as Assistant Engineer  and Sectional  Officer in  the office of the Chief  Engineer and,  according to the prosecution, they had affected  cost analysis  and had  justified the proposal which had  been submitted  by appellant Salaria to the Chief Engineer seeking  his approval to the rates tendered by khan Electric and General Stores. 31.  What had  happened was  that after  the bills  had been submitted by  the contractors  for payment, an objection was raised by  the Accountant  relating to  non-approval of  the contract by the Chief Engineer. This needed clearance of the Chief  Engineer   for  which  purpose  Salaria  addressed  a communication on  4.10.1977 to the Chief Engineer (a copy of which is  at pp.10 and 11 of Volume IX) seeking his approval to the  tender  rates  in  question.  In  the  memo  of  the aforesaid date,  which was  endorsed to  the Chief  Engineer Salaria had  mentioned in  its margin (and this endorsement, according to Shri Handoo, is not to be found in the original of the  letter) stating,  inter alia,  that the tender rates were  as   per  the   Superintending  Engineer   Memo  dated 27.5.1975, a  copy of which was also enclosed. After receipt of this  letter on  22nd October, the Chief Engineer desired processing of the matter. The file was endorsed to Assistant Engineer Kantroo  by Technical  PA to  the Chief Engineer on 22nd itself;  and Kantroo,  in turn  endorsed the  letter to Razdan on 24th. 32.  An office  note  running  into  3  and  1/2  pages  was prepared by  Razdan on  25th which  came  to  be  signed  by Kantroo also  on that  date The  Technical PA  to the  Chief Engineer submitted  the office  note on the same date to the Chief Engineer.  The Chief Engineer, however, found that the standing procedure  regulating invitation of the tenders and processing the case thereafter had not ben followed strictly due to  extreme urgency  involved as stated by the Executive Engineer.  The   Chief  Engineer  in  his  note,  asked  the Superintending Engineer  to get  the case  processed at  his level  and  to  obtain  the  observation  of  FA  (Financial Adviser) and  to get  the agenda  put up  thereafter by  the Executive  Engineer   for  discussing   and  deciding  in  a committee  of   the   Superintending   Engineer,   Executive Engineer, FA  and CAO  (or his  representative) and  himself within a week. 33.  The aforesaid  shows the  extreme hurry  in  which  the matter was  dealt by  the appellants  Kantroo and  Razdan. A perusal of  the office  note, which  is at pages 12 to 15 of volume IX,  shows that  they regarded  the  accepted  tender rates as  justified solely  because of  the approval  by the Superintending Engineer,  REST  (Rural  Electrification  and Sub-Trans) Circle  of the  carriage rates  in  5/75  ranging

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between 51 to 75 per km. per pole. (This document is at page 99 of Volume VII). 34.  Shri Handoo  contended that the complicity of these two appellants is  apparent from the fact that they had confined their attention  only to  the one time approval given by the aforesaid Superintending  Engineer without  at all trying to know as  to under what circumstances the rates were approved and, what  is more,  without trying  to know  what were  the other accepted  mode of  carrying poles  and what  were  the rates thereof. 35.  Shri Sushil Kumar, learned senior counsel appearing for these appellants,  submitted that  no other data or material was available  in the  office of the Chief Engineer, and so, the appellants  confined their  attention to  the rate about which mention  had been  made in  the communication  of  the Executive Engineer.  That no other material was available in the office of the Chief Engineer is the evidence of PW.1 who was the  Inquiry Officer.  PW.26 who was the Technical PA to the Chief  Engineer and,  last but  not the  least, the  IO, PW.65, also deposed the same. 36.  The further submission of Shri Sushil kumar was that if these appellants  had omitted  to make  any further inquiry, about which the observation of the trial court was that they did not "conduct research", the same did not really show any guilty mind,  though that  could be a case of negligence for which departmental  action may be merited but not a criminal prosecution. In this connection our attention was invited to the recommendation of the Inquiry Officer stating that these appellants have  to "explain their negligence in not traving to ascertain  and apprise  the Chief  Engineer of  the vital information appertaining  to the  carriage  rates  at  which poles had  been carried to Ladakh by .........."(Page 105 of Volume V). 37.  To support  him on  the legal  submission, we have been referred  to   Abdulla  Mohammed  Pagarkar  vs.  State(Union Territory of  Goa, Daman  & Diu), (1980) 3 SCC 110. That was also a  case where  the appellants had been convicted, inter alia, under  Prevention of  Corruption  Act.  While  setting aside the  conviction and  ordering  for  acquittal  of  the appellants, this  Court observed  in paragraph  24, to which our  attention   is  invited  in  particular,  that  if  the appellants  proceeded   to  execute  the  work  in  flagrant disregard of  the relevant  rules of  the General  Financial Rules and  even of ordinary norms of procedural behaviour of Government  officials  and  contractors  in  the  matter  of execution  of   work  undertaken   by  the  government  such disregard had  not been  shown  to  amount  to  any  of  the offences for which the appellants convicted. The submission, therefore, was  that we  may not  read ingredients of any of the offences  for which  the appellants  have been convicted merely because  of their  not having made some enquiries and having acted against accepted norms. 38.  We have  found it  difficult to  agree with Shri Sushil Kumar because  a perusal  of the  aforementioned office note clearly shows  two things. First, the extreme hurry in which the assigned  work was completed, as the file came to Razdan on 24th  October and  was sent  back on 25th, after the same had been  examined, not only by him, but Kantroo also. There was  no  occasion  for  hurry  at  that  stage  inasmuch  as transport of  the bamboo poles had almost been completed and what remained to be done was only the payment. Secondly, the note discloses  the these  appellants knew  that the cost of carriage per  pole even  as per  the lowest tenders would be Rs.144.60. This  must have shocked their conscience and they must have  tried to  know what  could have  been the cost of

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poles were  carried, not  on the  basis of per km. per pole, but as  per truck  loads. Sitting in the office of the Chief Engineer it would not have been difficult for these officers to find  out the rate either of the RTC or private carriers. The omission  to make these inquiries stares one at the face and  so   they  were   rightly  prosecuted   the  ultimately convicted,  because   of  their   apparent   complicity   in recommending the acceptance of the rates, characterizing the same as justified. 39.  Shri Sushil  Kumar advanced  yet another submission. He urged that  the acquittal of the Chief Engineer by the trial court and  of the  Superintending Engineer by the High Court show that  these courts  had not read any criminal intent in the role they had played in the matter; and the same view is merited qua the two appellants. We do not propose to examine the justification or otherwise of the acquittals, because of there being no appeal against acquittals before us. It would be enough  to point  out that  the Chief  Engineer had  been acquitted as  the trial court took the view that Salaria was interested in  keeping the  Chief  Engineer  in  dark  about salient features  of the  contract, because  of which it was stated that  the Chief  Engineer could not be a conspirator. As to  the acquittal of the Superintending Engineer what the High Court  stated was  that he  had neither  been  informed about the  floating of  tenders on  17.9.1977, nor was taken into confidence  when tenders were opened on 27.9.1977. Even a copy  of the NIT had not been sent to him. This apart, the High Court  has referred to a communication addressed by the Superintending Engineer to Salaria in which the former asked the latter  as to  why poles  were not carried by RTC trucks and why  the carriage contractors had been introduced. We do not propose to dilate further. 40.  We,  therefore,   conclude  by  stating  that  the  two appellants were  rightly found guilty. As to the substantive sentence awarded on them, we would reduce the same to RI for one month,  as  we  have  sentenced  the  main  culprits  to imprisonment for  two months. The fine of Rs.3,000/- on each of the  appellants is  left unaltered. In default of payment of fine,  each of  them would  undergo imprisonment  for one month. 41.  Criminal Appeal Nos.523 and 526 of 1981 are, therefore, dismissed,  subject   to  the   aforesaid  modification   in sentence.                     Appellants H.L.Dhar,F.A. Zadoo and Mohd. Siddiq                     (Criminal Appeal Nos. 522,528 and 529 of 1981) 42.  The alleged  role of these appellants was that they had passed poles  below specification  inasmuch as   poles below the length  of 20 feet were allowed to be transported. There is no dispute that the contract was to transport poles whose length was  required to  be between 20 feet to 30 feet. This has its  importance because  poles of smaller size would not have the  required girth  which would  affect their strength and they  would not be able to withstand the normal wear and tear. Of  the aforesaid  appellants, Dhar  was  a  Sectional Officer in  the Power Development Department, Zadoo a Store- keeper cum  Clerk and  Siddiq a Junior Clerk engaged on work charged basis.  Their defence  was that  as poles  below the length of  20 feet  had ben  transported earlier,  they  had permitted the  same this  time as well, not knowing that the contract was  to carry  poles of  20 feet  and  above.  This defence has to be rejected for two reasons: (1) It cannot be believed that  the Passing Officers would not know about the size of  poles to  be transported; and (2) it is the case of

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appellant Buch  that he  had informed  about the size of the poles to be accepted. 43.  The High  Court has strongly criticized the role of the Passing Officers  by stating  that had they not been parties to the  conspiracy, the entire conspiracy would have flopped and the  carriage contractors  could not have carried such a great number  of poles  in such short span of time and could not have earned so much. 44.  Shri Agarwal,  learned  senior  counsel  appearing  for these appellants,  contended that  even if  it  were  to  be accepted  that   these  officers  were  informed  about  the contract being  to carry  poles of  20 feet  and above,  the poles below  20 feet  carried were  small in  number and the percentage of the pole so carried was in the neighborhood of what has been done earlier. From Statement No.4 filed in the case by  Shri Thakur,  it appears  that even  RTC trucks and private carriers,  who too  were supposed  to carry poles of the length  of 20 feet and above, had transported some poles below 20  feet, whose  percentage came  to 20.9, whereas the percentage of  such poles  transported by the three carriers contractors was 21.3. 45.  We have  also found from the judgment of the High Court that the  contractors had  billed for those poles only which were of  20 feet  and above. This is admitted by Shri Handoo and is  apparent from  the bills  submitted by  the carriers which are  on record.  To bring home this point, it would be enough to refer to the bill of Arfa Electrical Company which is at  page 286 of Volume XII. The total number of poles for which bill  was submitted  comes to  822, of  which 647 were between 20  feet to 26 feet and the remaining 175 between 27 to 30.  In all,  however, the  contractor had  carried  1125 poles, as mentioned at page 75 of the High Court’s judgment. There is no dispute that similar is the situation as regards the two other carriers. 46.  It thus  appears that though these three appellants had sought to assist the carriers to cause wrongful gain to them by  allowing     transportation  of  poles  below  20  feet, ultimately no financial loss on this court was caused to the State because  the carriers  had not  been  paid  for  poles carried by them which were below 20 feet. We are, therefore, of the  view  that  these  appellants  also  deserve  to  be acquitted, as  were some  of the  Field  Officers,  who  had accepted the  under- sized  pole at  the receiving point had been acquitted  by the  High Court. May it be mentioned that the High  Court had  acquitted  the  Field  Officers  mainly because of  acquittal of  the  supplier,  namely,  Mustaq  & Company, by the trial court against which no appeal had been filed. The  High Court  observed that if no offence had been committed by the supplier on this score, the persons who had received those  poles cannot  be faulted  with. We would say the same qua these three appellants. 47.  Criminal  Appeal  Nos.522,528  and  529  of  1981  are, therefore, allowed  by setting  aside the  conviction of the appellants and by ordering their acquittal.              Appellants Hafeezullah and F.A. Qurashi              (Criminal Appeal Nos. 524 and 525 of 1981) 48.  These are  the contractors  who had  been approached by Buch and  had started transportation work from 18.9.77 - the date of  the issuance  of the  NIT being  17.9.77. Appellant Qurashi had  executed the  work from 18th for 6 days and had transported  1038   poles.  Appellant   Hafizullah   started transportation work  from 24th  September and this continued till 29th, during which period 1125 poles were carried. 49.  Shri Jethmalani,  learned senior  counsel appearing for these appellants,  contended  that  there  were  some  legal

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infirmities in  their conviction.  He first  stated in  this regard that  the charges  framed against  them being  one of conspiracy with  accused 5 and 6 (who are appellants Salaria and Buch) and through them with accused 1 to 4 (who were the Power Development  Commissioner, the  Chief Engineer,    the Superintendent  Engineer  and  Technical  PA  to  the  Power Development  Officer),  and  accused  1  to  4  having  been acquitted, the charge of conspiracy against these appellants has to  fail on  this count  alone.  Further  leaf  of  this argument was that there being no charge of conspiracy inter- se among the three contract carriers, even if there was some conspiracy between  accused Rashid  Khan and  P. Gulam Nabi, who were  the partners  of the  firm of  Khan  Electric  and General Stores, no illegal act at all was committed by these appellants, as  after all  what hey  had agreed to do was to transport poles  at the  rate to  be found  lowest on tender being floated.  It was  also contended  that there was wrong use of  section 10  of the  Evidence Act because there is no evidence alliunde  about these  appellants having "conspired together" with others in which case alone section 10 becomes operative. Final  flaw mentioned  was that the circumstances which had  come on  record against  these appellants had not been put  to them  in their  examination under  section  313 Cr.P.C., because  of which  the  circumstances  have  to  be excluded from consideration, as held by this Court in Sharad Birdhichand v. State of Maharashtra, 1984 (4) SCC 116. 50.  It is  no doubt  correct  that  accused  1  to  4  were acquitted but  accused 5  and 6  were not;  and we  too have upheld their  conviction. Though  the  charge  stated  about ultimate conspiracy  with accused  1  to  4,  the  same  was alleged through accused 5 and 6. We have already dealt as to what is  the effect  of acquittal  of accused  1 to 4 on the charge of  conspiracy, and  it has been pointed out that the acquittal did  not affect the inner circle of the conspiracy which remained  intact inasmuch  as appellants  Salaria  and Buch are comprehended in that circle. 51.  As to  there having been no charge of conspiracy inter- se between  the three  contractors, the same is not material because  of   our  finding   that  there  was  close  inter- relationship between  the three  firms and  all of  them had acted in  concert. The submission about non-applicability of section 10  of the Evidence Act, therefore, fails. So, it is not necessary  to advert  to what was held in this regard in Natwarlal Sakarlal  v. State  of  Bombay,  1963  Bombay  Law Reporter 660 to which we were referred by Shri Jethmalani to support  his  submission  relating  to  section  10  of  the Evidence Act. 52.  This leaves  for consideration  the submission that the circumstances  coming   on  record   were  not  put  to  the appellants when they were examined under section 313 Cr.P.C. for which  reason the circumstances have to be excluded from consideration. In support of this submission Shri Jethmalani read out  to us  the questions  asked to  Hafeezullah, which (alongwith his  answers) are  at page  283 of  Volume II and read as below:-      "Q. It  has transpired  in evidence      that without  having anything to do      with Arfa Electrical Co. Red-Cross-      Srinagar you  have submitted a bill      for Arfa  Electrical Co., which was      originally shown  to be  a bill  on      behalf  of   khan  Electrical   and      General Stores?      A/ I  am a partner of Arfa with one      Farooq Ahmed  Zargar. The  bill was

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    given for  typing  and  the  typist      committed  a   mistake,  which  was      corrected by hand. The bill was due      because of  the arrangement made by      me and  my partner  with ECD Leh on      8.9.77.      Q/  Further   that   Farooq   Ahmed      Qurashi S/O your Father’s Brothter-      in-Law had  submitted quotation  in      response to  NIT issued by Xen. ECD      Leh as proprietor of Arfa Elec. Co.      with which you had no connections?      A/  That   is  not   correct.   The      quotation Ex  PW3/10 which  I  have      seen today was signed by my partner      Farooq Ahmed  Zargar and  bears the      signature  of   said  Farooq  Ahmed      Zarqar  and  not  of  Farooq  Ahmed      Qureshi.      Q/ Why you are being prosecuted?      A/ I do not know.      Q/ Why  the  witness  are  deposing      against you?      A/ No  witness has deposed anything      against me.      Q/ Would  you like  to  lead  (sic,      make) any other submission?      A/ I am innocent.      Q/  Would  you  like  to  lead  any      defence?      A/ Yes." 53.  The aforesaid does show that Hafeezullah was not asked, in any  form, about  his having entered into conspiracy with anybody. He was not even asked that the rates at which poles were carried  by him  were unreasonable  or high.  As  these allegations/circumstances are  the crux  of the  prosecution case insofar  as  he  is  concerned,  the  non-providing  of opportunity to  him to  explain the  same has   rendered his conviction unsustainable.  We, therefore,  accept his appeal and order for his acquittal. 54.  Insofar as appellant Qurashi is concerned, a perusal of his examination  under 313  (at pages 280 to 282 of Vol.II), however, shows that the facts which emerged against him were put to  him to  enable him  to explain  the same.  The  law, therefore, would not require us to exclude the circumstances brought on  record against  him. His  conviction, therefore, has  to   be  sustained   as  we  are  satisfied  about  his complicity. But  then, keeping in view the sentence which we have awarded  on the  principal accused, namely, Salaria and Buch, we would reduce his sentence to RI for one month. Fine of  Rs.20,000/-  as  awarded  by  the  High  Court  is  left unchanged. In  default of  payment of  fine,  the  appellant would suffer imprisonment for two months. 55.  Criminal Appeal  No.524/81 is,  therefore, allowed. But Criminal Appeal  No.525/81  is  dismissed,  subject  to  the aforesaid modification in sentence.             Appellants A.R. Khan and P. Gulam Nabi                 (Criminal Appeal No.527 of 1981) 56.  These appellants  are the  partners of  Khan Electrical and General  Stores. It  is this firm whose tender being the lowest was  accepted on 27.9.1977 in the wake of issuance of NIT on 17.9.1977. 57.  In view  of all  that has  been stated  above there  is nothing to doubt about their involvement in the matter. Shri Thakur,  appearing   for  these  appellants  also,  made  no

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independent submission  relating to  them. All  that he  had urged was  to bring  out our  notice the circumstances under which their firm was given the contract and how the contract having been  given at  the lowest  tendered  rates  was  not tainted. We  have expressed our opinion on these submissions while dealing  with the case of Salaria and Buch. We may not repeat the  same. We  may only  point out that from what has been stated  above we  are satisfied that the contract given to the firm of these appellants was as per pre-arranged plan and the  same was given to them to enable them to earn extra profit for appropriate sharing afterwards. 58.  We are,  therefore, satisfied  that they  were  rightly found guilty  both by the trial court and the High Court. As to their  substantive sentence,  we would reduce the same to RI for  one month  keeping in  view  the  sentence  we  have awarded on  appellants Salaria  and Buch,  and what  we have done  regarding  the  sentence  of  appellants  Kantroo  and Razdan. We  would, however,  leave the  sentence of  fine as awarded which  is a sum of Rs.22,000/- on each unaltered. In default of  payment of  fine,  each  of  them  would  suffer imprisonment for two months. 59.  Criminal Appeal  No.527/81  is,  therefore,  dismissed, subject to the aforesaid modification in sentence.                                    Conclusions 60.  We may sum up our conclusions. These are: (1)  Conviction of  appellants N.A. Salaria and G.D. Buch is upheld. Their  substantive sentence  is, however, reduced to RI for  two months.  Fine of  Rs.15,000/- as  awarded by the High Court,  is left  unaltered. In  default of  payment  of fine, each  of these  appellants would  undergo imprisonment for two months. (2)  Conviction of  appellants T.K.  Kantroo and V.K. Rajdan has been confirmed. Their substantive sentence has, however, been reduced  to RI  for one  month. Fine  of Rs.3,000/-  as awarded by  the High  Court is left unaltered. In default of payment of  fine,  each  of  the  appellants  would  undergo imprisonment for one month. (3)  Conviction of  appellants H.L.  Dhar,  F.A.  Zadoo  and Mohd.  Siddiq   has  been  set  aside  and  they  have  been acquitted. (4)  Conviction of  appellant Hafeezullah has been set aside and he too stands acquitted. (5)  Conviction of  appellant FA  Qurashi is  confirmed. His substantive sentence  has, however,  been reduced  to RI for one month.  Fine of Rs.20,000/- as awarded by the High Court is left  unaltered. In  default of  payment  of  fine,  this appellant would suffer imprisonment for two months. (6)  Conviction of  appellants A.R.  Khan and  P. Gulam Nabi has been confirmed. Their substantive sentence has, however, been reduced  to RI  for one  month. Fine  of Rs.20,000/- as awarded by  the High  Court is left unaltered. In default of payment  of  fine,  each  of  the  appellants  would  suffer imprisonment for two months.